The California Supreme
Court agreed yesterday to decide whether the “continuing violations” doctrine
or a variant of that rule can be applied to extend the time to sue for
violation of the Unfair Competition Law.

The justices, at their
weekly conference in San
Francisco,
voted unanimously to review the ruling by a split panel of this district’s
Court of Appeal that threw out a West Los Angeles copy shop owner’s Unfair Competition Law
action against Canon Business Services.

Jamshid Aryeh claims
that Canon routinely overcharged copy machine renters for “test” copies made by
its service personnel. But Div. Eight, in its June 22 ruling in Aryeh v.
Canon Business Solutions, Inc. (2010) 185
Cal.App.4th 1159, said the claim accrued when the plaintiff first
learned of the alleged overcharges nearly six years before filing suit, and was
barred by the UCL’s four-year limitations period.

Justice Madeleine Flier,
joined by Los Angeles Superior Court Judge Peter D. Lichtman, sitting by
assignment, rejected Aryeh’s claim that the clock on filing suit restarted
every time Canon made an overcharge. Pointing to the doctrine’s traditional
application in employment cases, Flier wrote that Canon’s actions were not the
type of “harassing and egregious conduct the…doctrine is designed to deter.”

Justice Laurence D.
Rubin dissented that the “similarly named but conceptually distinct ‘continuous
accrual’ doctrine” applied, opining that each breach of the rental agreement
between Aryeh and Canon gave rise to a new cause of action.

Delayed Accrual

A cause of action
generally arises when the defendant’s conduct occurs. The continuing violations
doctrine, however, delays accrual of certain causes of action until the
plaintiff has actual or constructive knowledge of facts giving rise to the
claim.

Aryeh said in his
complaint that in November 2001, doing business as ABC Copy & Print, he
entered into a lease agreement with Canon for a copier in which he agreed to
pay a monthly fee for a monthly copy allowance, and an additional charge for
further copies.

Aryeh entered into a
second, similar lease for another machine the following February, but began
noticing that the meter readings taken by Canon’s filed service personnel did
not match the number of copies actually made on the leased copiers. He claimed
that when Canon ignored his repeated requests to repair the copiers and take
accurate readings, he began keeping his own records of copies, and determined
that he was being charged for test copies made by Canon personnel when the
machines were repaired or serviced.

Despite his requests,
Aryeh alleged, Canon never reimbursed him for the overcharges, and also charged
him late fees.

Aryeh filed a putative
class action in 2008, but Canon demurred and Los Angeles Superior Court Judge
Robert L. Hess ruled that Aryeh failed to state a cause of action. Hess also
concluded that Aryeh’s claim was barred by Business and Professions Code Sec.
17208’s four-year statute of limitations.

Opinion Cited

On appeal, Flier—pointing
to the 2002 decision by the Fourth District Court of Appeal in Snapp &
Associates Ins. Services, Inc. v. Robertson 96 Cal.App.4th 884—wrote that
both cases involved “the allegedly wrongful collection of fees on a recurring
basis,” and said that the Snapp court’s decision that a claim accrued at
the time of the first alleged overcharge was controlling.

She also opined that the
continuing violations doctrine did not apply to UCL claims, and declined to
expand the doctrine’s application beyond employment cases involving “on-going
accumulative harassment…or a broad and longstanding corporate policy of
discrimination,” or cases involving a creditor’s harassment of a debtor.

Rubin, however,
contended that the majority’s focus on the continuing violation rule was
unnecessary, and he opined that Snapp did not support Hess’ ruling.

Arguing that the rule
only came into play when a plaintiff sought recovery for conduct falling both
within the limitations period and outside of it, the justice noted that Aryeh’s
suit only implicated overcharges within the limitations period. He wrote that
Aryeh was alleging a breach of his agreement with Canon, and that when a
contract is breached on multiple occasions, each breach gives rise to a new
cause of action.

“The injunctive relief
authorized by the UCL should not be automatically unavailable following recent
misconduct merely because the first unfair practice took place several years
earlier,” he commented.

Equitable Tolling

Rubin also rejected Snapp’s
application, writing that the case involved only equitable tolling and delayed
discovery, neither of which were implicated in Aryeh’s case. Instead, he said,
the court should have applied Suh v. Yang (1997) 987 F.Supp. 783,
where a judge of the U.S. District Court for the Northern District of
California distinguished the continuing violation and continuous accrual rules
in the context of a UCL claim, and rejected a similar statute of limitations
argument.

In other conference
action, the justices:

•Left standing a judgment
for more than $22.4 million in favor of the City of Compton against a former
contractor who bribed city officials to obtain an exclusive franchise while
also running the city’s in-house waste division.

Div. Four of this
district’s Court of Appeal ruled on July 19 in HUB City Solid Waste Disposal
Services, Inc. v. City of Compton (2010)186 Cal.App.4th 1114, that Michael Aloyan and
his company were both liable for violation of Government Code Sec. 1090, which
prohibits a public official or employee from acting on a contract in which that
person has an interest.

The waste franchise was
tainted both by Aloyan’s securing it while working for the city, and by his
paying what amounted to bribes to members of the City Council, including
then-Mayor Omar Bradley and his aunt, then-Councilwoman Delores Zurita,
Presiding Justice Norman Epstein wrote for the court.

•Agreed to decide a
dispute between Los
AngelesCounty and 47 cities who claim
they have been shortchanged with respect to distribution of property tax
revenues. This district’s Court of Appeal, Div. Three, ruled in favor of the
cities on July 7 in City of Alhambra v. County of Los Angeles, 186 Cal.App.4th 537.

•Declined
to review the dismissal of a wrongful termination action by former reference
librarian Michael Kaye against the Board of Trustees of the San Diego County
Law Library. The Fourth District’s Div. One ruled that Kaye’s claim that the
library violated Labor Code Sec. 1198.5, pertaining to an
employee’s right to access his or her personnel file, was barred by res
judicata because he could have raised the claim in an earlier action.

In
the earlier case, the appellate panel upheld a judgment rejecting Kaye’s claims
for
violation of the state Constitution’s “liberty of speech” clause, the statute
governing employment of law librarians, the California False Claims Act, and
the Ralph M. Brown Act. The most recent case, Kaye v.
Boardof Trustees of the San Diego County LawLibrary, D055268, was decided July 30 in an
unpublished opinion.